Tuesday, February 21, 2006

Online vigilantes: where we are

The United States has a long history of vigilantism, which is civilians' "taking the law into their own hands." Vigilantism emerges when "official" law enforcement is lacking or is perceived as being ineffectual. Americans are likely to associate vigilantism with the "Wild West," a place and an era in which law enforcement was often sorely lacking. While "vigilance committees" were organized around the country at various times, we generally associate vigilantes with the Wild West, and with scenarios like that depicted in the Ox-bow Incident.

With a few isolated exceptions, vigilantism had disappeared from American society by, say, the middle of the twentieth century. The last few years, however, have seen the emergence of a new kind of vigilante, in this country and elsewhere. This new kind of vigilante either operates totally online or uses cyberspace to orchestrate vigilante activity in the real-world. The Artists Against 419 are an example of the first kind of vigilante; the Artists Against 419 and similar groups utilize online tactics to harass and sabotage those who use to perpetrate Advance Fee Fraud, or 419, schemes. Perverted Justice and similar groups use online tactics to identify adults who seek to have sex with minors; their favorite tactic is having an adult pretend to be a minor participating in an online chat room. The adult who is pretending to be a minor goes online and participates in a chat room frequented by adults who want to have sex with children; the fake minor chats with these adults, and eventually arranges a meeting with one of them in the real, offline world. If and when the adult seeking sex with a minor shows up for the meeting, he or she may be arrested by police who have been informed of the meeting and/or may be "outed" on the Perverted Justice website.

The activities of both types of online vigilante raise an obvious question: Is this legal? Some of the tactics used by The Artists Against 419 are legally questionable, in that they may constitute a denial of service attack, which is a crime in the U.S. and in at least certain other countries. The activities of Perverted Justice and similar groups are more problematic, for at least two reasons.

One is that Perverted Justice has been criticized for, among other things, erroneously "outing" innocent people on their website. This could constitute defamation, which is civilly actionable and may also constitute a crime. Perverted Justice denies this and claims they have never been sued and their operations "line up nicely with the bill of rights." While I have my doubts about this, I tend to agree that their activities probably do not violate existing law. We do not make "vigilantism", as such, a crime; instead, we prosecute vigilates for the crimes they commit in the course of taking the law into their own hands. So we prosecute vigilantes for murder if they kill someone, for assault if they beat someone, and so on. If Perverted Justice "outs" someone who clearly did show up intending to have sex with a child, this would not be defamation, harassment or any other crime I can think of at the moment. If they incorrectly "outed" someone, this could be civilly actionable defamation, but the person might very well not want to file a lawsuit and bring more attention to the matter. Incorrectly "outing" someone might also be criminal defamation, but criminal defamation is not a crime in all states, tends to be a very minor offense in states that do make it a crime, and is generally not prosecuted. So, I suspect there is not much that could and would be done if Perverted Justice had erroneously "outed" an innocent person.

The other reason I see Perverted Justice and similar groups as problematic goes to the kind of activity Perverted Justice has been specializing in of late, as broadcast by NBC. I refer, of course, to Perverted Justice's running its online stings and luring adults to a location where they think they will have sex with a child, but where they actually encounter police who arrest them and reporters who memorialize the whole transaction. In my next post, I want to talk about the legal issues this kind of activity raises, and about what it might suggest about how vigilantism will evolve online.